Where parties do not marry, they are entitled to apply to the Court to have a property settlement finalised if they have been in a “defacto” relationship.
But what is a “defacto” relationship for the purposes of Family Law in Australia?
In order to fall under the Family Law Act 1975, two people (either same sex or opposite sex) must have been living together on a “genuine domestic basis”.
The Court looks at many things when deciding if a defacto relationship existed including the following:
- Length of the relationship;
- Where the parties lived during that time;
- How the financial responsibilities and resources were shared (or not shared) during that time;
- Whether there was a sexual relationship between the parties;
- How property was held by the parties (in joint names or individual names);
- Who uses the property owned by the parties;
- How other people view the relationship and the level of commitment of the parties to their relationship;
- Whether there are children of the relationship;
- Whether the relationship is registered.
Just because there has been a defacto relationship, that may not entitle the parties to relief under the Family Law Act 1975. To be a matter which falls under these laws the following matters are also considered:
- Has the relationship continued for a period of 2 years; or
- Has either (or both) parties made substantial contributions to the assets of the parties (either financial, non-financial or as homemaker/parent); or
- Is there a child/ children of the relationship; or
- Would it be unjust not to make an order.
The changes to the legislation to include defacto relationships can lead to a situation where a party is in a defacto relationship even if they are married or in another defacto relationship with someone else.
If there is a defacto relationship then property and spousal maintenance matters can be dealt with by the Court in the same way as married couples.